Was Monroe v. Pape Wrongly Decided?

The New Year is a time to ask big questions, to put nagging issues and concerns into perspective, and to chart a course which, perhaps, will make the world a more elegant place in which to live and work. So I ask this question on the cusp of 2010. It is a question that has been on my mind for the past few years. I simply have not had the courage to ask it.

Was Monroe v. Pape wrongly decided?

It sure feels as though most judges think it was. But none of them seem willing to think things through to their logical conclusion. So let me offer a helping hand.

The 1961 Supreme Court decision is the lodestone of modern civil rights practice. It clearly established that individuals can bring a federal cause of action against state actors for abusing a person's constitutional rights. This single decision breathed new life into the Ku Klux Klan Act, codified at 42 U.S.C. Section 1983. And for several decades, litigation under the act was robust. During the past decade, however, the courts have done all they could to trim the sails of civil rights litigants. All, that is, except the one thing remaining: overturn Monroe v. Pape.

Here are the facts of the case: Chicago police officers investigating a murder burst into the Monroe home in Chicago. They rousted the family, forcing them to stand naked in the livingroom while they ransacked the family apartment. They then whisked Mr. Monroe to the police station for a couple days of interrogation. It was Gestapo treatment, pure and simple.

Monroe sued the officers in federal court. The police officers argued that they were not acting under color of law. Their acts were, in effect, ultra vires. If Monroe had a beef, he should and could raise the claims in state-law tort actions. His claims had no business in federal court.

A majority of the Supreme Court thought otherwise, and thus was spawned a complex jurisprudence filled with crazy patchwork logic: You can sue a cop for money damages, but only in his individual capacity. To do otherwise is to violate Eleventh Amendment immunity. And thus was born a public policy that has municipalities throughout the nation in effect providing free insurance to police officers who break the law in the performance of their duties. Sue a cop for violating the right to be free from unreasonable force, and he'll get a city-appointed lawyer; why, the city will even pay damages in most jurisdictions.

The law, Dickens noted, is an ass.

Justice Felix Frankfurter dissented in Monroe v. Pape. His logic is elegant. When a cop violates the law, they lose the cloak of lawman. A thug is a thug is a thug. Ultra vires acts transform a cop into a citizen, and citizens can bring tort claims against one another under state common law. (Good luck with the state-law immunities.)

The federal courts are now behaving as though Frankfurter's dissent is the law of the land, only the judges won't admit it. In the past decade of so a judicial doctrine you'll never hear a rock-ribbed conservative fuss and moan about prevents most cases from ever seeing the light of a courtroom floor. Qualified immunity has become a judicial fantasy land. All but the most egregious conduct by state actors is now forgiven by lifetime appointees.

The federal courts also show hostility to these claims by adopting new rules requiring heightened pleading standards, a boon to the defense bar, which blithely bills every hour. And there are special rules on emotional distress damages. A single witness can testify to a crime, but emotional distress requires corroboration by other witnesses.

The fact is that the federal courts have lost interest in claims of official misconduct. If that is the case, then why not reconsider Monroe v. Pape? Is a little intellectual honesty from the judiciary too much to expect?

Happy New Year, and if you see a cop on the road, genuflect: the law requires it.

Reprinted courtesy of the Connecticut Law Tribune.

Comments (5)

Posted on December 21, 2009 at 1:37 pm by Norm Pattis

William:
Take a look at the recent Iqbal decision...

William:

Take a look at the recent Iqbal decision. It changed things in a way that benefits only the defense bar.

Norm

Posted on December 21, 2009 at 12:52 pm by David Beauvais

At the same time that the federal courts are throw...

At the same time that the federal courts are throwing obstacles in the path of civil rights plaintiffs, the likes of Scalia are paring back the exclusionary rule by arguing that criminal defendants have an adequate remedy by bringing a civil rights action.

I, for one, am happy that municipalities pick up the tab. I don't want to run around trying to enforce judgments against individuals. What good does it do to get a cop's rusty old pickup truck in satisfaction of a six-figure judgment?

Posted on December 21, 2009 at 10:31 am by William Doriss

"Nonetheless, prior to the TWOMBLY decision [127 S...

"Nonetheless, prior to the TWOMBLY decision [127 S. Ct. 1955 (2007)], neither Congress nor the Federal Rules Advisory Committee saw any need to tighten the extremely liberal notice pleading standard that was applied pretty uniformly across the country. Indeed, in a new appendix to the Federal Rules of Civil Procedure effective as of December 1, 2007, the sample form complaints are largely verbatim copies of the form complaints appended to the 1963 revision to the Rules. Whatever its consequences, the CONLEY standard was clear and well-settled. There was certainly no groundswell to reexamine CONLEY, and no one thought that it was in danger of being altered." (pp. 853-5.)

Ten pages later, McMahon says, "Historically, district court judges have not been permitted to decide whether allegations are 'believable'. Instead, judges are limited to ascertaining whether allegations are obviously frivolous or the product of delusion and fantasy. The believability of allegations that are not inherently irrational has ever been the province of juries, not judges. Requiring district judges to decide whether a plaintiff's factual allegations are sufficiently 'believable' to survive a motion to dismiss invites the type of constitutional attack that scholars are increasingly mounting on summary jugment motions--namely, that they deprive plaintiff's of their Seventh Amendment right to a jury trial in too many cases." (page 865.)

This is a very complex, but compelling essay by McMahon which I believe has relevance to the above essay by Pattis. Read it for yourself and see if you agree? My own argument is that the federal courts have locked out and blocked large numbers of civil rights complaints and petitions for redress of grievances against the sovereign, in spite of the ability of the plaintiff to 'demonstrate' and/or 'prove' his complaints--and in spite of 'Constitutional' and procedural guarantees. What I am reading now and what I have personally experienced from the federal judiciary tells me that the courts have become a farce and are today pretty-much irrelevant to those of us living in the 'real world' of so-called law and order.

This is not what I was taught in Government 101, and it certainly is not how it was supposed to be. The judicial branch is in desperate need of true oversight and reform. It does not appear this will happen any time soon.

Posted on December 21, 2009 at 10:19 am by William Doriss

"Rule 8 does not require a short and plain stateme...

"Rule 8 does not require a short and plain statement of the FACTS underlying a claim; it says only that the plaintiff must draft a short and plain statement of the CLAIM. Under the 'notice pleading' system, a complaint need only give the defendant notice of the nature of the plaintiff's claim so he can begin to prepare a defense. The facts undergirding the claim do not generally need to be pleaded; they will be fleshed out later through discovery. ..."The drafters of the Federal Rules of Civil Procedure adopted notice pleading because they wanted to get away from the old common-law pleading that had bedeviled courts and litigants in England and the United States for centuries. Rule 8 reflects a preference for having cases decided on their merits. It eschews the old practice of forcing a plaintiff to jump through procedural hoops in order to survive a motion to dismiss (formerly known as a 'demurrer'). Particularity (i.e., more allegations of fact) is only required in a complaint alleging mistake or where the allegations directed to a defendant are thought to be particularly offensive--such as allegations of fraud or deceit."Any doubt about the ease with which a plaintiff could satisfy Rule 8 was put to rest in 1957, when the Supreme Court decided CONLEY v. GIBSON, a case that is often taught on the first day of Civil Procedure class. In CONLEY, the Court explained that Rule 8(a)(2) relieved a plaintiff of the burdensome common-law requirement to 'set out in detail the facts upon which he bases his claim'. The Court said that as long as the complaint provides fair notice of the grounds for entitlement to relief, '[t]he accepted rule [is] that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'. ..."Rule 8, as generously interpreted by CONLEY, is unquestionably slanted in favor of the pleading plaintiff. The downside of the 'no set of facts' formulation is the ease with which an utterly meritless case can proceed through discovery, consuming scarce judicial resources and burdening defendants financially. As Congress has created more and more rights and remedies, and Americans have become more and more inclined to 'make a federal case' out of circumstances that aggrieve them, the economic and public policy consequences of a liberal pleading rule have become increasingly apparent.

Posted on December 21, 2009 at 10:13 am by William Doriss

While not familiar with the Pape decision, I am fa...

While not familiar with the Pape decision, I am familiar with Conley v. Gibson (1957), which established the pleading standard for federal complaints. I referenced this decision in my own federal appeal and investigated thoroughly in my Supreme Court case, docketed 08-6378. In my federal complaint, federal judge Robert Chatigny (Hartford) determined, incorrectly, that my complaints against city and state officials were without merit, in clear violation of well-established Conley v. Gibson.

I used a paper by Hon. Coleen McMahon as the basis of my own investigations. In "The Law of Unintended Consequences: Shockwaves in the Lower Courts after Bell Atlantic Corp. v. Twombly," Suffolk University Law Review, Vol. XLI, based on a lecture by McMahon at Suffolk University Law School, Nov. 8, 2007. McMahon writes:

"Rule 8 of the Federal Rules of Civil Procedure sets forth a simple pleading standard for the average complaint: 'A pleading that states a claim for relief must contain...(2) a short and plain statement of the claim showing that the pleader is entitled to relief...' This rule is short and to the point, like the 'notice pleading' standard it advocates. The rule's requirements are few in number and easy to satisfy."

About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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